Private Law without Precedent

Abstract

A common law system assumes that judges regularly issue new opinions that clarify and update the law over time. At the same time, our federal system assumes that state courts will do the bulk of judicial lawmaking, especially in private law. And, with a few exceptions, our broader legal system assumes that state private law has allocated entitlements and obligations into a coherent system. These assumptions have not been true for a long time. 

This Article offers a comprehensive account of when and why these assumptions about the proper functioning of private law fail. It then uses this account to assess the status of private law as a system. This account begins with legal education, tracing the decline in how elite law schools teach and privilege private law topics. It turns to modern legal research tools, finding that they systemically miss large areas of state private law. Next, it recounts the structural and substantive barriers that courts face in updating private law doctrine, which, among many others, include under-resourced courts, expanded federal jurisdiction, the growth of alternative dispute resolution, and changed attitudes towards judicial lawmaking. While a century of prior scholarship has identified some of these individual problems, others have gone unrecognized, and this Article offers a novel account of how these pathologies interact and compound each other. Taken together, the account offered here reveals a troubled private law in which neither courts nor legislatures have ownership over maintaining private law as a system. 

In the absence of a well-functioning private law system, contract has expanded its role. Here the story is one of co-determinacy: In fields where there is little recent private law precedent, contract fills the gap. At the same time, the familiarity of contract doctrine encourages courts to view disputes as contractual disputes rather than undertake the difficult work of updating less familiar doctrines. This phenomenon has systemic effects on the private law, tipping it in favor of those with more power over contracts—typically larger firms—while weakening the substantive guardrails that the rest of the private law had long placed on contract. The result is a private law that is less efficient and less responsive to social change—and one that ultimately undermines the legitimacy of the legal system as a whole. 

Keywords: common law, property, contracts

JEL Classification: K12